Crick v Warringah Council

[1999] NSWLEC 51

Land and Environment Court

of New South Wales

CITATION:	Crick - V - Warringah Council [1999] NSWLEC 51
PARTIES	APPLICANT Guy Crick
RESPONDENT Warringah Council
NUMBER:	10011 of 1999
CORAM:	Lloyd J
KEY ISSUES:	:- 'a dwelling house' means not more than one dwelling
LEGISLATION CITED:	'a dwelling house' means not more than one dwelling
DATES OF HEARING:	03/11/1999
DATE OF JUDGMENT DELIVERY:	03/16/1999
LEGAL REPRESENTATIVES:	APPLICANT C Simpson Solicitors: Dominic Morebito RESPONDENT A M Hudson Solicitors: Wilshire Webb

JUDGMENT:


1. This is the separate hearing and determination of preliminary questions of law pursuant to the Supreme Court Rules Pt 31 r 2(a) (which applies in this Court by dint of the Land & Environment Court Rules Pt 6 r 1(1)).

2. The applicant has appealed to the Court under the Environmental Planning & Assessment Act 1979, s 97(1), against the refusal of a development application to erect a second dwelling house on an allotment of land on which there is an existing dwelling house. The respondent contends that the proposed development is prohibited under the relevant environmental planning instrument, the Warringah Local Environmental Plan 1985.

3. The questions of law have been formulated as follows:

“1. Whether the erection of two detached dwellings on a single allotment of land zoned Residential 2(a) (Residential “A”) under WLEP 1985 is prohibited.

2. Whether the use of a single allotment of land zoned Residential 2(a) (Residential “A”) under WLEP 1985 for the purposes of two detached dwellings is prohibited.”

4. The land to which the development application relates is within zone No 2(a) (Residential “A”) under the Warringah Local Environmental Plan 1985, in which zone development for the purpose of “dwelling houses” (other than dwelling houses on land which, for present purposes, is not relevant) is permissible (clause 9). The Warringah Local Environmental Plan 1985 defines “dwelling house” as “ a building containing one but not more than one dwelling ” (clause 5) (the emphasis is mine).

5. Clause 15 of the Warringah Local Environmental Plan 1985 provides as follows:

“Dwelling-houses in Zone No 2(a), 2(a1), 2(b), 2(d) or 2(e)

15. A person shall not erect a dwelling-house on an allotment of land within Zone No 2(a), 2(a1), 2(d) or 2(e) unless that allotment was lawfully created.”

6. Mr A M Hudson, who appears for the respondent, contends that the use of the singular, “ a dwelling house” on “ an allotment” in clause 15, together with the definition of “dwelling house”, means that only one dwelling may be erected on a single allotment in residential zones. Mr Hudson relies for this submission on Warringah Shire Council v S Y Holdings Pty Ltd (Court of Appeal, 9 February 1982, unreported) and on Giltej Securities Pty Ltd v Warringah Shire Council (Stein J (1986) 59 LGRA 158).

7. In Warringah Shire Council v S Y Holdings Pty Ltd , the Court was concerned with whether clause 6(1) of Interim Development Order No 51 - Shire of Warringah permitted more than one dwelling house on an existing parcel of land. That clause provided as follows:

“6(1) Notwithstanding the provisions of clause 13 the Council may consent to the erection and use of a dwelling house on an existing parcel of land having an area of not less than 2 hectares but less than 20 hectares.”

8. Samuels JA (with whom Hope and Mahoney JJA agreed) said:

“But the language of cl 6 itself, to my mind, supports the appellant’s argument. Clause 6, so far as immediately pertinent, gives the council power to consent ‘to the erection and use of a dwelling house’. This indicates that the purpose of the Order is allow the erection and the use of a, that is, one , dwelling house, on a parcel of the specified area. It, at the material time, no doubt when an application for consent is made, there is an existing dwelling house on land which otherwise satisfies the requirements, consent to the application would entail consent to the use of two dwelling houses on the same parcel of land.” (Emphasis is mine.)

9. In Giltej Securities Pty Ltd v Warringah Shire Council , Stein considered clause 18(1) of the Warringah Local Environmental Plan 1985, which relevantly provides:

“18(1) Nothing in this Plan shall prevent the erection of a dwelling house on an allotment of land within zone No 1(a), 1(b) or 1(c) … .”

10. Stein J followed and applied S Y Holdings and did not regard the differences between clause 6 of the order and clause 18 of the local environmental plan as material. His Honour said (at 164):

“I therefore find it proper to construe clause 18 of Warringah Local Environmental Plan 1985 (bearing in mind Samuels JA’s interpretation) to mean: ‘Nothing in this plan shall prevent the erection and use of one dwelling-house on an allotment of land within Zone No 1(a), 1(b) or 1(c)’ ….”

…
I reject Mr Talbot’s submission that S Y Holdings is distinguishable because of the difference in wording between the relevant clauses. In my opinion the remarks of the Court of Appeal are entirely apposite. It is clear that clause 18 prevents the erection (and consequent use) of a dwelling house on an allotment which otherwise complies with the clause, where there is a dwelling house already erected on that land.”

11. There is in the present case no relevant difference between clause 18 of the local environmental plan with which I am now concerned, as construed by Stein J, and clause 15 of the local environmental plan with which I am now concerned. I thus conclude that, as a matter of statutory construction, clause 15 prevents development for the purpose of the erection of a dwelling house which would result in there being more than one dwelling house on an allotment of land. It follows that the proposed development in this case is prohibited.

12. This conclusion is given added weight when considered in the light of the history of associated statutory provisions, to which Mr Hudson referred in his submissions. This course is permissible for the purpose of interpreting current statutory provisions if there is any ambiguity therein (Pearce and Geddes, Statutory Interpretation in Australia , 4th Edition (1996), Butterworths, pp 69, 75).

13. When the Warringah Local Environmental Plan 1986 commenced, it contained clause 16, which specifically allowed a person, with the consent of the Council, to alter or add to a dwelling house erected on an allotment of land within a residential zone so as to create two dwellings.

14. On 19 June 1987 clause 16 was repealed. At the same time, Sydney Regional Environmental Plan No 12 - Dual Occupancy commenced, which permitted (with consent) the erection of a second dwelling house on an allotment of land, other than land zoned Rural or Non-Urban, upon which a dwelling house is already situated; and which permitted the erection of two separate dwelling houses on an allotment of land, other than land zoned Rural or Non-Urban (clause 2(d)(iv) (v)).

15. On 26 September 1997, Sydney Regional Environmental Plan No 12 was repealed and State Environmental Planning Policy No 53 - Metropolitan Residential Development commenced. This policy permitted, inter alia , (with consent) the development of two dwellings on a single allotment of land (clause 17). One of the aims of the policy is to encourage councils to prepare and adopt residential development strategies and supporting local environmental plans and policies to achieve the policy’s overall aims and allow to local government areas to be exempted from the policy when those strategies and plans are in place. On 9 October 1998 Warringah local government area was exempted from the policy.

16. In short, the legislative history shows that when the Warringah Local Environmental Plan 1985 commenced, it specifically allowed (with consent) attached dual occupancies in residential areas (clause 16). Clause 16 was repealed and in its place Sydney Regional Environmental Plan No 12 was made, which allowed two dwellings on an allotment of land in residential zones. Sydney Regional Environmental Plan was in turn repealed and in its place State Environmental Planning Policy No 52 was made, which also allowed two dwellings on a single allotment of land. Subsequently the Warringah local government area was exempted from the application of State Environmental Planning Policy No 52 .

17. There was thus a succession of statutory provisions from the commencement of the Warringah Local Environmental Plan 1985 until 9 October 1988 which expressly permitted the development of two dwellings on an allotment of land in residential zones. The removal of the last of those provisions when the Warringah local government area was exempted from State Environmental Planning Policy No 53 means that, since 9 October 1998, there has been no express provision permitting the development of more than one dwelling house on an allotment of land in residential zones. The fact that whereas before 9 October 1998 such development was expressly permitted but since that date it is not, suggests that the construction which I have adopted in paragraph 11 above is correct.

18. It follows that each of the questions of law described in paragraph 3 above must be answered in the affirmative.

I certify that this and the preceding 6 pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

Associate
Dated: